Uber driver sues over employment status, citing...

1of2Dozens of supporters of AB5, a measure that clarifies when companies can label workers as independent contractors, rally Wednesday at the Capitol in Sacramento.Photo: Rich Pedroncelli / Associated Press

2of2Attorney Shannon Liss-Riordan speaks to reporters in Boston in April. She is representing a Bay Area Uber driver in a new lawsuit.Photo: Boston Globe

A Bay Area ride-hail driver has kicked off an expected flood of lawsuits over employee status — even before a bill tightening the rules for when workers are employees has become state law.

An Antioch Uber driver filed a proposed class-action case late Wednesday against the ride-hailing company for misclassifying her and other California drivers as independent contractors rather than employees. The case in U.S. District Court for the Northern District of California cites AB5, legislation that passed the state Senate and Assembly this week and is expected to be signed by Gov. Gavin Newsom.

Although AB5 wouldn’t take effect until Jan. 1, 2020, it codifies an existing legal precedent, a 2018 California Supreme Court decision called Dynamex. Both AB5 and Dynamex make it harder for companies to label workers as freelancers. They lay out a simple “ABC” test that says workers are employees if (A) they perform tasks under a company’s control, (B) their work is integral to the company’s business and (C) they do not have independent enterprises in that trade.

“We brought this complaint to ensure Uber complies with California law,” said Shannon Liss-Riordan, a Boston attorney who has already filed numerous class-action cases against Uber, Lyft, DoorDash, Postmates and other gig companies over misclassification. Liss-Riordan is also running as a Democrat for the congressional seat held by Sen. Ed Markey, D-Mass.

Uber, which already said it expects to fight lawsuits and arbitration claims over driver classification, reiterated that it thinks it can win.

“As we have said, under AB5 the classification test would now be different in California, but that doesn’t mean we won’t pass the test,” Uber said about the lawsuit.

On Wednesday, Tony West, Uber chief legal officer, said the company will not reclassify workers, but instead will contest their status in courts and in arbitration. Uber plans to argue that drivers’ work is “outside the usual course of Uber’s business, which is serving as a technology platform for several different types of marketplaces,” West said.

Plenty of other attorneys are likely to file misclassification suits against Uber and other companies that continue to treat workers as independent contractors. In fact, AB5 empowers public attorneys to sue over misclassification. The city attorneys of San Francisco and Los Angeles have expressed openness to doing so. Meanwhile, private attorneys will also be lining up to sue, said several legal experts.

Most previous class-action suits against gig companies were hampered because Uber and similar companies ask drivers to agree to mandatory arbitration in case of disputes, which bars the vast majority of them from joining forces in a class-action.

But, Liss-Riordan said, two developments would allow her current case, McRay vs. Uber, to proceed as a class action that potentially could include all California drivers.

Employee misclassification hurts the public interest because of loss of state tax revenue and the need to provide social safety-net services for workers who don’t have employee protections, Liss-Riordan said.

Carolyn Said covers the on-demand economy (new marketplaces such as Uber, TaskRabbit and Airbnb that let people rent their time, goods and services), the impacts of automation and AI on labor, and the world of autonomous vehicles. Previously she covered the housing market and foreclosure crisis, winning awards for stories that shed light on the human impact of sweeping economic trends. As a business reporter at The Chronicle since 1997, she also has covered the dot-com rise and fall, the California energy crisis, the corporate malfeasance scandals, and the fallout from economic downturns.